The fact is that “stop-and-frisk” doctrine is based not only on solid jurisprudence, but is also codified in state laws all across our country. When properly used, is in keeping with the prohibition against unreasonable searches and seizures by the Fourth Amendment in our Bill of Rights.

Also true is that there’s plenty of potential for abuse by unscrupulous or under-trained cops, especially if urged by politically motivated higher-ups to expand the tactic beyond what is legally permissible.

In New York City particularly, but also elsewhere, the aspect of so-called racial profiling has heightened the controversy. Young black and hispanic males — especially young black males — commit an extremely high disproportionate amount of the crime in our society, and NYC is a case study in this phenomenon. Areas with the most instances of crime, as reported by victims, are the areas with the highest concentrations of blacks, and to a somewhat lesser extent hispanics. It logically follows that those tasked with fighting crime are going to patrol the more crime-ridden areas the most, and statistically will that much more often encounter and investigate such demographic profiles when patrolling and looking out for suspicious activity.

In 1968, the Supreme Court ruled in the case of Terry v. Ohio that police officers can, based merely on a reasonable amount of suspicion that a crime may be afoot, conduct investigatory stops and brief detentions (deemed “seizures”) of persons to ask questions, and perform quick, exterior searches of them for officer safety, to check for weapons.

Reasonable suspicion is a legal standard of proof which is a level lower than probable cause. It involves more than a mere “hunch,” but not necessarily rising to probable cause. Along with stops & pat-downs of, say, a pedestrian on the street who is observed peering into the windows of various parked cars, routine traffic stops (“getting pulled over”) are included the category of what are sometimes called “Terry stops,” after the landmark case mentioned above. Such stops are not arrests, but merely brief investigative detentions which may or may not lead to findings of probable cause and further search/arrest.

Probable cause is where a situation points more directly to a crime (beyond a simple traffic infraction) having been committed by the party in question. It justifies and compels a more thorough search and/or actual arrest. Probable cause, the more convincing standard, is what is needed for an on-the-spot arrest to be made, for a more extensive incident-to-apprehension search to be done, or for a formal search or arrest warrant to be issued once needed information is presented.

In the ongoing controversy over stop-and-frisk in the Big Apple, various individuals have come forward publicly with evidence that police may have abused their authority. There have been numerous lawsuits, of course. Primarily, plaintiffs allege that police stopped them without the requisite threshold of reasonable suspicion, targeting them only because of their race.

In scandalous events which have unfolded in recent years, a federal judge first ruled that the NYPD had to cease its stop-and-frisk practices so that strict reforms could be put in place under the supervision of a court-appointed monitor. Next, after then-mayor Bloomberg appealed the ruling to the higher court, that same judge was removed from the case for the appearance of misconduct, having given public indications of her impartiality, and because it was deemed not legally appropriate for her to have accepted the matter under her purview in the first place. But soon thereafter, as present mayor DeBlasio assumed office, he dropped the pre-existing appeal, and announced that the reforms would proceed.

Under the two mayors preceding DeBlasio, the NYPD’s aggressive, zero-tolerance tactics of the “broken window theory” of policing over prior periods of years dramatically turned the city into the safest metropolis in the entire country, where it had once been the most dangerous of all, under the liberal governance and laxity of their predecessors.

In DeBlasio’s New York City, criminals are surely to become more emboldened, but what police abuses may have existed might also be reduced.

One thing is for certain, however: Stop-and-frisk is not going away, not completely nor permanently, because it is an important tool; one that also accords with the protections of our fundamental, inalienable rights found in the U.S. Constitution. Not only is it legal, it is absolutely necessary in fighting crime.

As for the racial profiling aspect, I prefer to term it criminal profiling with race as an element. As I’ve written not long ago, policework without profiling is like insurance underwriting without actuarial tables. It’s certainly unconstitutional for police to harass someone for no other reason than their race, however, including race in the totality of factors being considered when investigating criminal activity is just sound law enforcement.

Bill DeBlasio and people who share his views may refuse to admit the truth, but there it is.

About the author, Donald Joy: Following his service in the United State Air Force, Donald Joy earned a bachelor of science in business administration from SUNY while serving in the army national guard. As a special deputy U.S. marshal, Don was on the protection detail for Attorney General John Ashcroft following the attacks of 9/11. He lives in the D.C. suburbs of Northern Virginia with his wife and son. View all articles by Donald Joy

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